The Director of Public Prosecutions v NB (Approved)

Factual and Procedural Background

An allegation of historical indecent assault was made in 2016 by the complainant, the nephew of the appellant, concerning an incident said to have occurred between 1987 and 1988 at the complainant's family home. The complainant, born in 1975, alleged that the appellant, born in 1969, forced him to perform oral sex during a visit to the family home. The complainant had a history of addiction, substance abuse, and incarceration, and claimed to have disclosed the assault to various persons over the years.

Following notification in June 2017 by Tusla, the appellant was interviewed twice during an investigation which concluded in 2019 with the complaint deemed unfounded. However, a parallel Garda investigation commenced after the complainant made a formal statement in December 2017. The appellant was interviewed by Gardaí in April 2019, and after further investigative steps, a file was submitted to the Director of Public Prosecutions ("DPP") in February 2021. The DPP directed prosecution in August 2021, and the appellant was charged in September 2021 with indecent assault contrary to common law and the Offences Against the Person Act 1861. The appellant pleaded not guilty.

The appellant sought judicial review relief, including an order prohibiting his prosecution, on grounds of unfairness due to the significant delay between the alleged offence and trial, loss of witnesses, and his mental and physical health. Leave to apply for judicial review was granted in February 2022, but without a stay on the prosecution, and the criminal trial was scheduled for June 2024. The High Court refused the relief in March 2024 and dismissed the application in April 2024. The appellant appealed that decision to the Court of Appeal, and the trial was adjourned pending the appeal.

Legal Issues Presented

1. Whether the appellant can establish a real risk of an unfair trial due to prosecutorial delay and resultant prejudice.
2. Whether the absence of deceased potential witnesses prejudices the appellant's ability to receive a fair trial.
3. Whether the appellant's mental and physical health conditions, exacerbated by the prosecution, place the case in the exceptional category where a trial would be unjust.
4. Whether the High Court erred in its legal analysis and application of criteria for exceptional cases warranting prohibition of trial.
5. Whether the High Court erred in preferring the evidence of the appellant's GP over that of the psychologist.

Arguments of the Parties

Appellant's Arguments

• The unavailability of three deceased family members (complainant's mother, father, and uncle) causes real prejudice, as these witnesses could have exonerated or assisted the defence.
• The High Court erred in discounting the significance of pre-trial stress and anxiety, incorrectly relying on proposed trial supports which are inadequate to address the appellant's psychological distress.
• The appellant's case falls within the exceptional category where it would be unjust to proceed to trial due to cumulative adverse factors including delay, lost witnesses, and mental health.
• The High Court failed to enumerate or apply criteria defining the exceptional category, leading to an erroneous conclusion that the case falls outside it.
• The High Court wrongly preferred the GP's report over the psychologist's report, disregarding relevant evidence without oral testimony to resolve conflicts.

Respondent's Arguments

• The High Court correctly applied legal principles, emphasizing that prohibition is an exceptional remedy requiring proof of real risk of unfair trial not avoidable by trial judge directions.
• The absence of deceased witnesses is speculative and unrelated to prosecutorial delay, as these witnesses died before any complaint was made to authorities.
• There is no evidence of blameworthy prosecutorial delay; the Garda investigation and procedural history were properly explained and justified.
• The appellant's physical and mental health issues are primarily attributable to pre-existing conditions, not the prosecution or trial process.
• The High Court was justified in preferring the evidence of the treating GP over the forensic psychologist, who was not involved in treatment and lacked access to full records.
• The High Court appropriately concluded that the appellant's case does not fall in the exceptional category warranting prohibition of trial, and no list of criteria is required for such a determination.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
S.Ó'C. v. DPP [2014] IEHC 65	Requirement of a "real" link between unavailable witness evidence and facts in issue; speculative arguments insufficient for prohibition.	Used to reject appellant's claim of prejudice based on deceased witnesses as speculative and insufficient.
MS v. DPP [2021] IECA 193	Cumulative impact of factors including ill-health can place a case in the exceptional category for prohibition.	Referenced in assessing appellant's mental health and cumulative prejudice claims; court found appellant did not meet threshold.
DPP v. C.C. [2019] IESC 94	Assessment of fairness best carried out at trial rather than on judicial review; importance of trial judge's role.	Supported the view that trial judge is better placed to manage fairness and assess prejudice during trial.
Pauletti v. Garda Cathal Dunne and DPP [2022] IEHC 714	Reaffirmation of need for real risk of unfair trial and rejection of speculative prejudice claims.	Relied on by both parties regarding assessment of prejudice from unavailable witnesses.
D v. DPP [2012] 2 ILRM 117	Recognition of nexus between accused's stress and prosecution-related factors relevant to fairness.	Cited by appellant to support claims of mental health impact from prosecution stress.
T.C. v. DPP [2017] IEHC 839	Consideration of prosecutorial delay and its effect on fairness of trial.	Appellant relied on analogies to argue prosecutorial delay and prejudice.
D. v. DPP [2017] 2 ILRM 117	Prosecutorial delay must be adequately explained; unexplained delay can prejudice fairness.	Appellant cited to argue prosecutorial delay was unexplained and prejudicial.
M. O'H v. DPP [2007] 3 IR 299	Threshold for prosecutorial delay: must be "something more than normal, something extra".	Appellant argued evidence met this threshold; court disagreed.
J.O'C v. DPP [2000] 3 IR 478	Legal principles on prosecutorial delay and fairness.	Cited by respondent to counter appellant's claims of delay-related prejudice.
P.H. v. DPP [2018] IEHC 329	Standards for assessing prosecutorial delay and prejudice.	Respondent relied on to support rejection of appellant's delay claims.
M.H. v. DPP [2018] IEHC 560	Assessment of delay and prejudice; role of trial judge.	Respondent cited to support trial judge's role and reject speculative prejudice.
A.T. v. DPP [2020] IECA 6	Comparisons with other cases limited in assessing exceptional circumstances.	Respondent argued no need to establish fixed criteria for exceptional category.

Court's Reasoning and Analysis

The Court of Appeal carefully reviewed the procedural history, evidential record, and submissions. It emphasized that prohibition of trial is an exceptional remedy requiring proof of a real risk of unfair trial that cannot be remedied by trial judge interventions.

The court found no blameworthy prosecutorial delay between the complainant's formal complaint in December 2017 and the commencement of judicial review proceedings in February 2022. The Garda investigation was detailed and justified the time taken, including efforts to obtain records, interviews, and court orders. The High Court's acceptance of these explanations was upheld.

Regarding the absence of deceased witnesses, the court noted that these individuals died before any complaint was made to authorities, so their unavailability was unrelated to prosecutorial delay. The appellant failed to demonstrate how their evidence would have exonerated him beyond speculation. The complainant's sister, who was a witness, could provide some relevant family context. The court agreed with the High Court that the trial judge is best placed to assess fairness during trial and intervene if prejudice becomes apparent.

On mental and physical health claims, the court preferred the evidence of the appellant's treating GP over the psychologist's report, reasoning that the GP's evidence was based on contemporaneous records and treatment, whereas the psychologist was a forensic expert engaged for litigation and lacked full treatment records. The court found no sufficient evidence that the prosecution or delay caused the appellant's mental health deterioration or suicidal ideation to a degree warranting prohibition.

The court acknowledged the absence of precise criteria for the "exceptional category" but agreed with the High Court that the appellant's case did not meet that threshold. The cumulative factors did not render the trial unjust. The court affirmed the crucial role of the trial judge in safeguarding fairness.

Accordingly, the Court of Appeal found no error in the High Court's legal reasoning or factual findings and upheld the refusal to prohibit the trial.

Holding and Implications

The Court of Appeal DISMISSED the appellant's appeal against the High Court's refusal to prohibit his criminal trial.

The direct effect is that the appellant's prosecution will proceed subject to the trial court's oversight to ensure fairness. No new legal precedent was established; the decision reinforces existing principles that prohibition is an exceptional remedy, that prosecutorial delay must be blameworthy and unexplained to warrant prohibition, and that trial judges are best placed to manage fairness in aged complaint cases. The appellant's claims of prejudice and mental health impact were found insufficient to justify intervention at this stage.